(dissenting). I find myself unable to agree with the conclusions reached by my Brother Steere in this case. The decree of the court below went upon the assumption that the nuisance complained of is jointly created and maintained by the city of Detroit and the village of Highland Park. This is said by my Brother Steere to be “sustained by abundant proof.” In my opinion a careful reading of the record demonstrates that the nuisance complained of is due entirely to the excessive amount of sewage thrown into the Woodward avenue sewer by reason of the development in the village of Highland Park.
The witness Peter Dunn, superintendent of sewers for the city of Detroit, said:
“The big Woodward avenue sewer is being overtaxed by the Highland Park sewers, which are causing the trouble.”
Thomas W. Aston, a resident of Highland Park, testified:
“There is a great deal more demand now on the sewer on Woodward avenue in Highland Park than there was in former years, and undoubtedly the increase of population of the village of Highland Park and the large increase in the number of dwellings and stores in Highland Park has made a greater demand for the use of the Woodward avenue sewer. Since that increased demand has been occasioned for the use of the Woodward avenue sewers, these conditions that I have described here on the witness stand have occurred.”
*192John L. Austin testified:
“Q. You know as president of Highland Park, and your board of trustees of Highland Park knew at that time, that the Woodward avenue sewer in the city of Detroit was used to its full capacity at that time?
“A. I could not say whether we knew it except as the results in Highland Park in times of storms would show it.
“Q. The results in Highland Park in times of storm would indicate that the Woodward avenue sewer in the city and in Highland Park was taxed to its capacity?
“A. Yes, sir; it was understood and generally conceded to be in that condition.
“Q. What you have to have now is some other sewer outlet to meet the needs of Highland Park other than the Woodward avenue sewer?
“A. Not necessarily; there is sufficient in Woodward avenue; if the tax on it in Detroit was relieved, it would take care of our needs.
“Q. You mean if the city of Detroit would build other sewers to relieve the territory that now drains into the Woodward avenue sewer you would have enough capacity through the Woodward avenue sewer to take care of your village?
“A. Either that, or relieve the congestion from Woodward avenue into other sewers which are already built?
“Q. That is the impression you have?
“A. Yes, sir; in other words, the Woodward avenue sewer in the city of Detroit; there is not sufficient sewer capacity coming out of Highland Park to take care of the population and the need and relieve it without leading into some other sewer.or dividing it up; in that way it could be taken care of.”
Milton Ford, clerk of the village of Highland Park since 1902, testified:
"The real result is now that Highland Park has increased in population and public improvements in the nature of pavements and sewers until the Woodward avenue sewer will not accommodate the inhabitants of the village and drain their property.
*193“Q. And at the rate the village is growing there is still need of additional sewers and pavements?
“A. Very much indeed.
“Q. That is general throughout the village, is it not?
“A. It is, yes; where sewers are already in they are inadequate, and there is - a large territory that is not sewered, and cannot be sewered until' we find an outlet for- the sewer, and this territory needs to be sewered. That is really the condition of affairs of the village; that is the condition that they are in at the present time.”
That the Woodward avenue sewer is ample to care for all the sewage tributary to it within the limits of the city is not open to question. Since 1899, there has been comparatively little development within the limits of territory which drained into that sewer. By this I do not mean that there has not been a great deal of building in that territory, but with very few exceptions, the entire district was at that time covered with sewers having their outlets into the Woodward avenue sewer. If the sewage now received from the village of Highland Park at the city limits were rejected, there would be no nuisance arising from the overloading of the Woodward avenue sewer within the city. I am therefore firmly of the opinion that both the learned circuit judge who heard the case and my Brother Stebre are in error in holding that the city of Detroit is jointly responsible for the maintenance of a nuisance.
Proceeding upon this assumption my Brother Steere next holds that the decree of the court below should be affirmed in principle because the questions involved are res adjudicata. Let us see exactly what the earlier decrees were:
“After due deliberation upon the pleadings and proofs and the arguments of counsel, it is ordered, adjudged, and decreed that the natural drainage of *194the southerly part of the territorial limits of the village of Highland Park is southeasterly through the present territorial limits of the city of Detroit into Connor’s creek, which empties into the Detroit river above the intake pipe of the Detroit waterworks; that more than 40 years ago this natural drainage was improved by the construction of ditches on each side of Woodward avenue into and through the city of Detroit to a sewer in Woodward avenue leading into the Detroit river, and also by the construction of county ditches in part within the present territorial limits of said city leading from Woodward avenue in said city easterly to Connor’s creek; that since the year 1890 some of these county ditches have been closed up and obstructed by the construction by the city of Detroit of a pavement on Woodward avenue to the city limits, and also by the construction of pavements on the lateral streets, and thereby the artificial drainage of the southerly part of the village of Highland Park has been cut off.
“It is therefore adjudged and decreed that the village of Highland Park may connect its Woodward avenue sewer with the Detroit sewer at the city limits for the purpose of carrying off the water that falls upon the southerly portion of the territorial limits of said village, and, incidental to this right of natural drainage, the village of Highland Park has the right to make use of its said sewer for the purpose of carrying off the sewage from the dwellings and premises situated in the southerly part of said village.
“It is further adjudged and decreed that the natural drainage of the northerly part of the village of Highland Park is to the easterly and northerly to Connor’s Creek; that more than 40 years ago this natural drainage was improved by the construction of a county ditch, known as the Wetmore ditch; that Connor’s creek is a sluggish stream running through a nearly level country, and the use of said creek by the village of Highland Park for sewerage purposes would be highly detrimental to the public health of the city of Detroit and vicinity.
“And it is further adjudged and decreed that until the further order of this court the village of Highland Park, as to the northerly portion of said village may be permitted to use said sewer for sewerage purposes *195in connection with, the residences and premises of the inhabitants situated within said northerly portion of said village, provided, however, that the water flowing in said Wetmore ditch is not turned into said sewer; and, provided, further, that an adjustable gate be put into the Highland Park sewer near the city' limits of the city of Detroit, said gate to have an opening in it 18 inches in. diameter, or the equivalent thereof, and this gate shall be subject at all times to the supervision and control of the board of public works of the city of Detroit, for the purpose of holding back the water in said Highland Park sewer if it should be necessary to do so in order to keep said Woodward avenue sewer, in the city of Detroit, from overflowing with water to the injury of the adjacent property owners; and provided, further, that the use of said sewer by the village of Highland Park and its inhabitants, and the provisions of this decree, shall be subject to the future orders and direction of this court, upon the application of either the city of Detroit or the village of Highland Park.”
The supplemental decree contained the follow language:
_ “The decree will remain open, and subject to revision when new conditions arise, and the connection will still remain under the control of the city of Detroit. * * * It is further ordered that either party may apply to the court for a modification of this decree at any time in the future as occasion may require.”
What did the court determine by its decree made in 1899? It determined, in the first place, that the southerly portion of the village of Highland Park had a natural drainage across the northeasterly corner of the city of Detroit into Connor’s creek, and that this natural drain had been interrupted by improvements within the city of Detroit. It determined, secondly, that the northerly portion of said village drained north and east naturally into Connor’s creek. The relative area of these two portions of the village *196is that the portion draining to the north is three or four times greater than the portion draining to the south, and even that portion never drained south to the river along Woodward avenue, but, after coming into the city three or four blocks, went directly east to Connor’s creek, so that at no time did any territory lying within the limits of the village of Highland Park ever have the right, through the natural conformation of the land, to deliver its water through the Woodward avenue sewer to the river. The court had before it at that time for consideration a situation in which a straggling village, containing but a few hundreds of population, desired to secure entrance into a particular sewer which was at that time, and still is, of a capacity beyond the needs of the city of Detroit. It determined, in effect, that permission would be granted to make the connection upon certain terms: (1) That said permission was temporary only, for it distinctly recites that it shall continue only until the further order of the court; (2) “upon the condition that the water flowing in said Wetmore ditch is not turned into said sewer;” (3) upon the condition that the connecting gate shall be under the control of the board of public works of the city of Detroit—
“for the purpose of holding back the water in said Highland Park sewer if it should be necessary to do so in order to keep said Woodward avenue sewer, in the city of Detroit, from overflowing with water to the injury of the adjacent property owners.”
Nothing could be clearer to my mind than that this language imported simply a license to the village of Highland Park to use the Woodward avenue sewer only so long as such use could be had by the village of Highland Park, without detriment to the inhabitants of the city of Detroit for whom and with the money of whom the sewer had been constructed. A *197situation has now developed which, under the terms of the decree, would have warranted the board of public works in times of excessive precipitation to have closed the gate at the connection, thus holding back the water in the village of Highland Park, so that it might not flood the premises of the citizens of Detroit. This, however, has not been done, and now the village of Highland Park, by reason of this forbearance, charges the city of Detroit with the maintenance of a joint nuisance, a nuisance created solely, as I have attempted to show, by the overloading of the Woodward avenue sewer from waters arising within the village. The decree of 1899 did not, in fact, adjudge that the village of Highland Park throughout any of its area had a right to the use of such sewer for all time, or for any specific time. It dealt solely with the condition as it then was, and not with the conditions as they have arisen since and now are, when a population of upwards of 20,000 occupies a territory which was at that time almost entirely farming land. Streets have been paved and sewers laid in the major portion of the area of the village. The surface water formerly collecting upon said area and passing east to Connor’s creek through the Wetmore drain now in a large part finds it way to Woodward avenue in Highland Park and thence into the Woodward avenue sewer in Detroit.
But whatever may be the true construction of the decree of 1899, I am of opinion that it is res adjudicaba- of nothing. It was in no sense a final decree. It distinctly asserts that the decree will remain open, and that either party may apply for a modification as occasion may require. The very fact that the defendant village has applied for a modification of that decree is an admission that it is not a final decree. The rule is laid down in 23 Cyc. p. 1126:
“A judgment cannot be set up in bar of a subse*198quent action unless it was a final judgment on the merits, adjudicating the rights in litigation in a conclusive and definite manner. In order that a judgment should be final within the meaning of the rule just stated, it must be such as puts an end to the particular litigation, or definitely puts the case out of court; otherwise it is merely interlocutory, and constitutes no bar to a subsequent action.”
In our own late case of Le Roy v. Collins, 165 Mich. 380 (130 N. W. 635), it was said:
“A judgment is not res judicata unless the identical matter in issue in the subsequent proceeding was determined by the former adjudication.”
In the case of L. E. Waterman Co. v. Modern Pen Co. (D. C.), 193 Fed. 242, it is said:
“A judgment is not available as an estoppel until the court rendering it has finally parted with control over the decision.”
See, also, Reis v. Applebaum, 170 Mich. 506 (136 N. W. 393); Murphy Chair Co. v. Radiator Co., 172 Mich. 14 (137 N. W. 791); and Tuthill v. Katz, 174 Mich. 217 (140 N. W. 519).
The question before the court in 1899 was whether, under the conditions as presented by the proofs in that case, the village should be permitted to temporarily use the Woodward avenue sewer. The village now seeks to make a connection with the Morrell street sewer, a sewer which was not in existence or even thought of at the time the original decree was made. The holding that by the decree made in 1899 the city of Detroit was forever obligated to take care of the sewage of Highland Park, the only matter left open being that of the manner in which it should be taken care of and the terms on which it should be taken care of, is, in my opinion, not only unjust but entirely unwarranted. That it has a right to use the sewers of the city of Detroit (outside the Woodward *199avenue sewer in which it has. such rights as the' decree of 1899 gives it) for its own purposes upon any terms not satisfactory to the city of Detroit, I deny.
The decree of the court below should be reversed, and the petition for modification dismissed.
McAlvay and Kuhn, JJ., concurred with Brooke, C. J. Ostrander, J., concurred in the result.